Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02987/2015

THE IMMIGRATION ACTS

Heard at Royal Court of Justice
Decision & Reasons Promulgated
On 11 July 2016
On 8 November 2016

Before

UPPER TRIBUNAL JUDGE CRAIG

Between

Mr Gordy Kalombo
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr T Lay, Counsel, instructed by Wilson Solicitors LLP
For the Respondent: Mr I Jarvis, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a national of the Democratic Republic of Congo (hereinafter referred to as "DRC") who was born on 10 August 1995. His parents were killed in the DRC in 1998 and he and his sister went to live with his grandmother. Their aunt and uncle were by that time resident in the UK and adopted him (and his sister). The appellant and his sister were granted indefinite leave to enter the UK on 7 December 2007 and they arrived here eight days later. The appellant has been in the UK ever since.
2. In 2011 (when the appellant would have been 15 or 16) the appellant went into care following allegations of abuse which he had made and he was thereafter accommodated by Glasgow Social Services in different children's units. He has thereafter committed numerous criminal offences.
3. As a result of these convictions the appellant was served with a decision to make a deportation order on 17 September 2015, in accordance with Section 32(5) of the UK Borders Act 2007. The appellant claimed that deportation would be in breach of his rights under both Article 3 and Article 8 of the ECHR, but both his human rights claim and claim for protection were refused in a decision dated 6 November 2015.
4. The appellant appealed against this decision and his appeal was heard before First-tier Tribunal Judge Gibbs, sitting at Hatton Cross on 25 January 2016.
5. In a Decision and Reasons promulgated on 26 February 2016 Judge Gibbs dismissed the appellant's appeal and the appellant now appeals against this Decision to the Upper Tribunal, leave having been granted by First-tier Tribunal J M Holmes on 11 April 2016.
6. The relevant history is set out in Judge Gibbs' Decision, which I briefly summarise. His first conviction was on 12 October 2011 (when he was just 16) when for an offence of behaving in a threatening manner he was given a community payback order of 100 hours' unpaid work. Following this conviction, the appellant has been convicted of a further 25 offences, the details of which were set out in the Notice of Decision dated 6 November 2015 which is the subject of this appeal. His most recent conviction, and the index offence, was on 24 October 2014, when he was sentenced to seventeen months' imprisonment in a YOI for "assault to severe injury and danger of life", four months' imprisonment in a YOI for "assault to injury", four months' imprisonment for another "assault to injury" plus another four months in a YOI for assault.
7. The respondent's case, as summarised by Judge Gibbs at paragraph 7 of her Decision is that:
"In accordance with paragraph 398 of the Immigration Rules the respondent concludes that the appellant's deportation is in the public interest because he is a repeat offender convicted of multiple violent offences. He does not meet the exceptions set out at either paragraph 399 or 399A of the Immigration Rules. The respondent is not satisfied that [there] are very compelling circumstances that the appellant should not be deported. Further, the respondent is not satisfied that the appellant would be destitute on return to the DRC or that he would be at risk of treatment in breach of Article 3 ECHR".
8. Judge Gibbs set out the provisions contained within the Immigration Rules at paragraphs A398, 398, 399 and 399A and also gave consideration to the provisions of Section 117C of the Nationality, Immigration and Asylum Act 2002, which had been inserted by Section 19 of the Immigration Act 2014. These provisions are also set out within her Decision.
9. The judge's findings and conclusions are then set out from paragraphs 16 to 25. At paragraph 17 the judge gave specific consideration to the guidance set out in the reported decision of this Tribunal in Chege (section 117D - Article 8 - approach) [2015] UKUT 165 as to the correct meaning of "very compelling circumstances". At paragraph 23, with regard to the appellant's Article 3 claim, she had specific regard to the guidance given by this Tribunal in the country guidance case of BM and Others (returnees - criminal and non-criminal) DRC (CG) [2015] 293 (IAC), concluding that the appellant did not fall within one of the risk categories identified by this Tribunal in that case. This aspect of the Decision has not been challenged, either in the grounds or during the hearing before me.
The Grounds of Appeal
10. The first ground is an alleged "misdirection as to the law by impermissibly raising the bar for disproportionality under Article 8 ECHR". The basis of this submission within the grounds appears to be that this Tribunal's decision in Chege was wrongly decided and that the judge had been wrong also to follow the Court of Appeal decisions in AJ (Angola) [2014] EWCA Civ 1636 and MF (Nigeria) [2013] EWCA Civ 1192. The submission at paragraph 8 of the grounds is that the Rules which now require an appellant to demonstrate that there are "very compelling circumstances over and above those described in paragraphs 399 and 399A" are not Article 8 compliant but were "an attempt to smuggle 'exceptionality' in via the back door". It is submitted at paragraph 10:
"The unlawful approach followed by the FtJ has the effect of giving dispositive weight to 'bright line' criteria (as contained in para 399 - 399A) that are not compliant with Article 8 and which preclude a Tribunal from giving weight to factors according to circumstances (in accordance with the Grand Chamber in Maslov [referred to in the third ground]".
11. The second ground is that the judge erred by finding that the appellant had not spent "most" of his life resident in the UK. It is submitted within the grounds that it is arguable that somebody who spent the first twelve years of his life outside this country but the next nine years in this country could still be said to have spent "most" of his life in this country because (at paragraph 13 of the grounds) "'most' is not synonymous with 'majority'". It is argued that "a plain and commonsense reading of the Rule" would allow a judge to consider that in these circumstances such a person could properly be said to have spent "most" of his life here, especially as elsewhere in the Immigration Rules there are explicit requirements that in certain circumstances an individual must have spent "more than half of their lives" in the UK. It is suggested in this context that but for this error the judge could have found in favour of the appellant "given his integration in the UK and the obstacles he would face returning to the DRC for the first time in over a decade and for the very first time as an adult" (at paragraph 14 of the grounds).
12. The third and final ground is that the judge did not apply properly the principles set out by the Grand Chamber in Maslov v Austria - 1638/03 [2008] ECHR 546.
The Hearing
13. Before me Mr Lay expanded upon the submissions set out within the grounds. With regard to the third ground, the failure to consider properly the Maslov criteria, he argued that the judge had failed to have regard to the fact that the appellant did not speak either French or Lingala. The judge had also failed to make a specific finding as to whether or not the appellant had any family in the UK. His solicitors had made representations that every member of his family had left the DRC in order to come to this country. His Article 8 case, which the judge should have considered, was that first the appellant did not speak either Lingala or French, secondly he had no family in that country, thirdly he had been here since he was 12 with ILR, which, although not determinative of his right to remain, was nonetheless relevant to the weight to be given to any private life he had in this country and fourthly that he had formerly been in care, which was relevant to the judge's evaluation of his vulnerability on return and also his chances on return and the risk of his reoffending.
14. Also, while it was accepted that he could not now succeed on Article 3 grounds following the country guidance decision in BM and Others, nonetheless his position in the DRC might still be relevant in the context of his Article 8 claim.
15. Although at paragraph 24 the judge had considered the seriousness of the offending she had not considered the other factors properly in her proportionality assessment. If this Tribunal agreed that she could have come to a different conclusion had she considered all the factors properly, then there would have been a material error of law.
16. Moving on to the second ground, Mr Lay submitted that the judge only got to consider the proportionality assessment because she had decided that the appellant could not succeed within 399A, because of a finding that he had not spent most of his life in the UK, which would have required her then to consider whether "there would be very significant obstacles to his integration" back into the DRC. He relied on the arguments set out within the grounds to the effect that the word "most" could not properly be understood as just requiring a simple mathematical calculation of how many years had been spent in this country and how many years outside. The context of the time spent here also had to be considered.
17. Further and in any event, even if the appellant could not succeed on the basis of having spent most of his life in the UK, nonetheless if there were very significant obstacles to his integration back into the DRC, this may amount to very compelling reasons, notwithstanding that there was a real risk of his reoffending if he remained in this country. While it was accepted that the judge could have said that it was proportionate to send him back, she had not properly considered the factors in his favour and for this reason her Decision was wrong in law, the error was material (because another judge considering the case properly might have reached a different decision) and therefore the decision should be remade.
18. In reply, Mr Jarvis, relying on the decision of the European Court in Balogun v UK [2012] submitted that the appellant's reliance on the Maslov point was simplistic, because an error of law could only be made out if there had been a material misdirection in law or error of fact. A judge did not specifically have to refer to a judgment by name in order to deal with the principles established. What the European Court in Maslov was considering was the weight which should be given to lawful residence by a child, but in this case the predominant residence of this appellant had not been while he was a child. Further, the European Court stressed in Balogun (see paragraph 49) that the circumstances in Maslov, where all the offending had been as a juvenile, and there had been no offending in the seven years since, were very different from circumstances where the main offending had been committed as an adult, as in this case.
19. Further, the judge did consider the significance of whatever connections the appellant had, because she noted at paragraph 22 that "understandably he is frightened of returning to a country which he left when he was 11 years of age and has no contacts", but nonetheless found first that he was "a fit young man with the benefit of education in the UK" and further, that "he does have family here who may choose to offer him at least financial support if he returns". And, the judge found (at paragraph 22), that "in any event there is no evidence before me to suggest the appellant would be unable to find work and care for himself on return".
20. In reply Mr Lay accepted that the error that he relied upon could best be categorised as a failure to take account of relevant considerations. Also, the judge should not have taken judicial notice that English is spoken in the DRC.
Discussion and Findings
21. It is in my judgment clear that the judge did consider what the appellant's prospects would be on return to the DRC. She found (and as I have noted there is no challenge to this finding) that the appellant would not be at risk on return such that his Article 3 rights would be engaged. As noted immediately above, at paragraph 22 of her Decision she set out the factors which showed that this appellant would be able to integrate back into the DRC. These were that he was a fit young man with an English education, that he may have financial support from his family who are here, and that in any event he would be able to find work and care for himself on return (because there was no evidence before her to suggest that he would not).
22. When one then goes on to consider the huge number of offences which this appellant has committed, a large number as an adult, and that these are offences involving violence, the judge was entirely entitled to consider that there were not "very compelling reasons" why he should not be deported. The reliance on the European decision in Maslov is misplaced. This appellant is not someone who spent most of his childhood in this country and whose offending was committed whilst he was a juvenile; rather, his offending was committed in the most part after he was an adult, and certainly the index offences were committed when he was around 19 years old. Further, he did not spend the bulk of his childhood in this country; his first twelve years had been spent in the DRC.
23. With regard to the suggestion that the appellant should be treated as having spent "most" of his life in the UK, such that the judge should have considered whether there would be "very significant obstacles to his integration" back into the DRC (within paragraph 399A of the Rules, which mirrors what is now within Section 117C(4) of the Nationality, Immigration and Asylum Act 2002) this is, in my judgment, unarguable. Before either Exception 1 (as set out within Section 117C of the 2002 Act) applies, or 399A of the Rules, it is necessary for an applicant to have lawfully resided in the UK "for most of his life". That means that he must have been in this country for a longer period than he has been out of it. That is what "most" means. There is no arguable basis for concluding that this word has any other meaning.
24. Moreover, even if this submission was arguable, it would still have to be established that the appellant was "socially and culturally integrated in the UK" and further that there would be "very significant obstacles" to his reintegration back into the DRC. I note that at paragraph 18 the judge rejected the argument advanced on behalf of the respondent before her that the appellant's criminal convictions were in themselves evidence that he was not integrated in the UK, "particularly given the length of time that he has lived here, his ability to speak English fluently and the fact that he has been educated here". However, the judge was not persuaded that he had any significant family life in this country, for reasons which she gave at paragraph 19, and in particular that he had not indicated "that he would return to live with his family if released from detention" which the judge found was "further evidence of a lack of a strong familial relationship". For these reasons she was "not persuaded that strong ties exist, and I am not satisfied that family life exists for the purpose of Article 8 ECHR".
25. With regard to "very significant obstacles" I consider that the judge would have been bound to find that there were not significant obstacles to the appellant's reintegration back into the DRC in light of her other findings, particularly at paragraph 22 of her Decision, as already referred to above. It is notable that the judge also took account of the appellant's speech difficulties, but had in mind evidence given by the appellant to his speech and language therapist that "in Africa stammering is accepted as being the way a person is" before reaching her conclusion that "this in itself would [not] present him with any particular problems in the DRC". She also took into account that although in the Criminal Justice Social Work Report dated 10 November 2014 there was mention of concern regarding the appellant's mental health, he had not accessed any mental health services at that time and that his last contact had been in 2012, such that there was no evidence that this would present a significant concern on return to the DRC.
26. In my judgment the judge was entitled to reach the findings she did, in particular that this appellant lacked family ties in this country and that there would not be any (let alone any very) significant obstacles preventing his reintegration within the DRC. On the facts of this case it is hard to see how any judge could have found that there were very compelling reasons why the return of this appellant, who is clearly a persistent offender who commits serious violent offences, would be disproportionate.
27. I accordingly find that there was no material error of law in the Decision of the First-tier Tribunal and it follows that this appeal must be dismissed.
Decision
There being no material error of law in the Decision of the First-tier Tribunal, the appellant's appeal is dismissed.
No anonymity direction is made.

Signed:

Upper Tribunal Judge Craig Date: 4 November 2016